Prime Minister Stephen Harper need not be deeply disappointed by the Supreme Court’s unanimous decision against the federal government’s Senate reform bill. He and his colleagues made an honest if misguided attempt to respond to a widespread dissatisfaction with the Senate, which has if anything increased since the government first tabled such a bill – before the expenses scandal in which Conservative Senators Mike Duffy, Pamela Wallin and Patrick Brazeau have had starring roles.
In particular, many in Mr. Harper’s party have a long-standing desire for a more democratic Senate with a more substantial expression of regional and provincial concerns – which was a large part of the intention for the Senate in the first place, in the deliberations leading up to 1867.
But the government’s bill stretched a point when it came to the choosing of senators, and that’s why the Supreme Court said no. It is not enough to call an election “consultative” to make it so. The bill would have established a complex framework for actually choosing senators, not just inviting advice. It would in effect have been binding.
That doomed the Senate-reform proposal. The Constitution Act, 1867, is quite clear that the governor-general “summons qualified persons” to the Senate – on the advice of the prime minister of the day. Want to change that? You’ll need a constitutional amendment, said the Supreme Court, including buy-in from at least seven provinces representing 50 per cent of the population. The court is of course right. Parliament can’t rewrite the constitution as easily as it passes legislation.
It’s true that the Senatorial Selection Act of Alberta, though it will expire at the end of 2016, has resulted in two appointments to the Senate, one by Brian Mulroney, one by Mr. Harper. These appoitments did come as a result of provincial votes. But since a provincial statute obviously cannot dictate the membership of the federal Senate, the Alberta law is really just an opportunity for a province’s voters to make a suggestion to the prime minister: It isn’t binding.
The upshot of all of this is that the government’s reference question to the Supreme Court was not in vain. On the contrary, this has been an extremely useful exercise. It has made the rules of game clear. Parliament can’t amend the Senate; for that you need a constitutional amendment. And abolishing the Senate, said the court, will require a unanimous constitutional amendment, ratified by Ottawa and all 10 provinces.
The Supreme Court decision has killed a bad idea, or at least put it on ice for years to come. The Conservative Senate reform plan had political appeal, but it held nothing but dangers for the future government of the country. Elected senators would have believed themselves to have full democratic legitimacy and a popular mandate, entitling them to overrule the House of Commons. Canada’s form of government would have changed dramatically and for the worse. Absent other constitutional amendments to the status and powers of the Senate, unprecedented conflicts between the two houses could have arisen, which our system currently has no mechanisms to resolve.
And then there’s the matter of the distribution of Senate seats. Empowering the Senate would mean giving new powers to a Senate dramatically overweighted in favour of the Maritime provinces – 24 Senate seats for fewer than 2 million people. The West, with more than five times as many people, also gets 24 seats. The West is growing, and fast; the Maritimes are not. The fever for Senate reform in Western Canada has been fading as that arithmetic has begun to sink in. The West always wanted “in” on federal political power, but thanks to a growing population, the West is now very much “in” – via the democratically elected Commons.
Given the public’s not unreasonable dread of reopening the Constitution, ever since the traumas of the Meech Lake and Charlottetown accords, there is no imminent danger of a fresh movement for constitutional amendments that would revive the deluded idea of electing and empowering the current Senate. Ditto an elected Senate with a new seat apportionment. Ditto abolition.
The government’s reference question and the Supreme Court’s clear response have done the country a service. Compared with what the government wanted, the Senate status quo doesn’t look so bad.